Citation Nr: 21006563 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-10 373 DATE: February 4, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to August 4, 2020, and in excess of 20 percent thereafter for left lower extremity radiculopathy is denied. Entitlement to a 10 percent rating, but no higher, from March 22, 2011, to April 1, 2012, for right lower extremity radiculopathy is granted. Entitlement to a rating in excess of 10 percent from February 12, 2010, onward for right lower extremity radiculopathy is denied. REMANDED Entitlement to a rating in excess of 40 percent for low back strain with spondylolisthesis and degenerative disc disease (low back disability) is remanded. FINDINGS OF FACT 1. The Veteran’s left lower extremity radiculopathy manifested in no more than mild incomplete paralysis prior to August 4, 2020, and no more than moderate incomplete paralysis thereafter. 2. The Veteran’s right lower extremity radiculopathy has manifested in mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left lower extremity radiculopathy prior to August 4, 2020, and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. The criteria for a 10 percent disability rating for right lower extremity radiculopathy from March 22, 2011, to April 1, 2012, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for a disability rating in excess 10 percent for right lower extremity radiculopathy from February 12, 2010, onward, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from December 1992 to December 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Throughout the course of this appeal, the RO has awarded increased ratings for the Veteran’s right and left lower extremity radiculopathy. However, as these evaluations were less than the maximum benefit allowed under VA law and regulations, the claims for increased ratings remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The appeal previously included a claim of service connection for a headache disability. The RO granted the claim in an April 2020 rating decision. As this award represented a full grant of the benefits sought on appeal, the claim is no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Additionally, in the Veteran’s April 2013 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge. However, in May 2015, the Veteran’s representative withdrew the request for a hearing. Therefore, the Veteran’s request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(e). The Board remanded the claims on appeal in September 2015 and April 2020 for additional development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Increased ratings for bilateral lower extremity radiculopathy. The Veteran contends that the severity of his left and right lower extremity radiculopathy warrants higher ratings. By way of history, service connection was granted for bilateral lower extremity radiculopathy and initial ratings were assigned in a February 2009 rating decision. The Veteran submitted a notice of disagreement in February 2010, and a statement of the case was issued in September 2010. Thereafter, the Veteran submitted an untimely substantive appeal in December 2010. With regards to the current appeal, rather than using the Veteran’s untimely substantive appeal as the date of his informal claim for an increased rating, the RO elected to use his February 2010 notice of disagreement as the date of claim, which is more beneficial to the Veteran. Therefore, resolving all reasonable doubt in favor of the Veteran, the appeal period before the Board begins on February 12, 2009, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s right lower extremity radiculopathy is currently rated 10 percent disabling prior to March 22, 2011, and from April 2, 2012, and noncompensable between those dates. His left lower extremity radiculopathy is rated 10 percent disabling prior to August 4, 2020, and 20 percent thereafter. The ratings are assigned pursuant to Diagnostic Code (DC) 8520, paralysis of the sciatic nerve. Under this DC, mild incomplete paralysis is rated 10 percent disabling, moderate incomplete paralysis is rated 20 percent disabling, moderately severe incomplete paralysis is rated 40 percent disabling, and severe incomplete paralysis (with marked muscular atrophy) is rated 60 percent disabling. An 80 percent rating is warranted where there is complete paralysis and “the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost.” The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis. Id. The terms “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Additionally, when the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Turning to the evidence of record, a March 2010 VA treatment record shows that the Veteran worked a full shift and then went straight to run a 5k marathon. A July 2010 VA treatment record shows that the Veteran reported experiencing some numbness in the thigh area that was relieved by afternoon. At a July 2010 VA examination, the Veteran reported painful tingling in his right and left foot that caused difficulty walking. On clinical evaluation, the Veteran showed decreased sensation to pinprick bilaterally below the knee to the foot. There was complete insensitivity to pinprick on the soles of the feet. Position and vibration sense were normal. No focal weakness was noted. Strength was within normal limits. Straight leg raise test was to about 50 degrees bilaterally with pain and decreased sensation or numbness below the knee to the foot. In his November 2010 informal claim for an increased rating, the Veteran reported that his legs and feet, especially the left, would go numb and cause him to drag his foot or delay daily activities. A February 2011 private treatment record notes normal motor function. The Veteran underwent another VA examination in March 2011. At the examination, the Veteran reported daily pain that traveled to his buttocks, legs, and feet as well as daily weakness. The Veteran also reported numbness. On clinical evaluation, the Veteran’s motor function, muscle strength, muscle tone, and deep tendon reflexes were normal. Pinprick sensation, vibratory sensation, and two-point discrimination were abnormal on the left. No sensory deficit of the right lower extremity was noted. Straight leg raise test was positive on the left but negative on the right. The examiner only noted left sciatic nerve impairment with decreased sensation. In an April 2012 evaluation, the Veteran’s private treating provider, Dr. D.B., reported that the Veteran’s right lower extremity radiculopathy was moderate, and his left lower extremity radiculopathy was moderately severe. Straight leg raise test was positive bilaterally. Pain, numbness, and weakness in the bilateral lower extremities was noted. A January 2014 VA treatment record notes that the Veteran continued to run and engage in Insanity workouts. Intermittent numbness in the bilateral lower extremities was noted. A September 2014 private neurological evaluation noted normal sensation of the bilateral lower extremities. No motor deficits were noted. A January 2015 VA treatment record notes intermittent leg pain and numbness. The Veteran also reported that he completed an Insanity workout about four months prior, heard a pop, and experienced a progression of leg symptoms. However, it was noted that the Veteran continued to run and do high impact activities, albeit less frequently due to pain. In May 2018, the Veteran submitted another private evaluation, completed by Dr. C.H., which noted sensory loss, reflex changes, and abnormal gait. Straight leg raise test was positive bilaterally. Dr. C.H. noted that the Veteran’s right lower extremity radiculopathy was moderate and left lower extremity radiculopathy was moderately severe. A July 2015 VA treatment record notes that the Veteran’s back and leg pain were affecting his ability to be active. Pursuant to the Board’s September 2015 remand, the Veteran underwent another VA examination in January 2016. The Veteran reported constant numbness and tingling in both legs as well as an intermittent sharp burning pain on the right lateral thigh. On clinical evaluation, muscle strength and deep tendon reflexes were normal. No muscle atrophy was noted. Decreased sensation was noted bilaterally. Straight leg raise test was negative bilaterally. The Veteran denied constant or intermittent pain. Mild paresthesias and/or dysesthesias and numbness were noted bilaterally. The examiner noted mild radiculopathy bilaterally. A September 2018 VA treatment record notes that the Veteran tried to walk 10,000 steps per day. An April 2019 VA treatment record shows normal muscle strength. The Veteran reported dull, achy, burning, tightness, numbness, and tingling that sometimes radiated to his legs. Pursuant to the Board’s April 2020 remand, the Veteran underwent another VA examination in August 2020. At the examination, normal muscle strength and deep tendon reflexes were noted. No muscle atrophy was present. The examiner noted decreased sensation bilaterally. Straight leg raise test was negative. The examiner also noted moderate left intermittent pain, paresthesias and/or dysesthesias, and numbness. Right mild intermittent pain, paresthesias and/or dysesthesias, and numbness also were noted. The examiner noted mild right lower extremity radiculopathy and moderate left lower extremity radiculopathy. Analysis A. Right lower extremity Based on the foregoing, the Board finds that the Veteran’s right lower extremity radiculopathy has more nearly approximated mild incomplete paralysis from February 12, 2010, onward. Although the March 2011 examiner did not note any nerve impairment of the right lower extremity, the Veteran did report weakness, pain, and numbness in his bilateral lower extremities, and it already was established that the Veteran had sciatic nerve impairment of his right lower extremity. However, the Board finds that a rating higher than 10 percent is not warranted at any point since February 12, 2010 for the right lower extremity. The evidence of record shows that the Veteran’s right lower extremity radiculopathy has manifested in pain and sensory deficits, without any motor deficits. Specifically, the Veteran’s muscle strength and deep tendon reflexes have consistently been noted as normal throughout the entire appeal period. While the Veteran has experienced decreased sensation, pain, numbness, and tingling in his right lower extremity, such symptoms have generally been intermittent. Additionally, any functional impairment caused by such symptoms appears to be mild. Notably, while the Veteran’s radiculopathy may have caused some difficulty with walking or other activities, the evidence of record shows that the Veteran has engaged in routine exercise throughout the entire appeal period, including running and high impact and high intensity workouts. Thus, the Board finds that the Veteran’s right lower extremity radiculopathy has more nearly approximated mild incomplete paralysis since February 12, 2010. While the appeal period technically begins on February 12, 2009, based on the evidence of record, it is not factually ascertainable that the Veteran’s right lower extremity radiculopathy increased in severity during the one-year period prior to his claim for an increased rating. Accordingly, a 10 percent rating is not warranted any earlier than February 12, 2010. 38 C.F.R. § 3.400(o)(1)(2). The Board acknowledges Dr. D.B. and Dr. C.H.’s opinion that the Veteran’s right lower extremity radiculopathy is moderate in nature. However, as noted by the Board’s prior remands, there is no explanation as to why Dr. D.B. and Dr. C.H. believe the Veteran’s radiculopathy is moderate under the applicable rating schedule, particularly in light of the fact that the Veteran was able to engage in running as well as high intensity and high impact activities. Moreover, Dr. D.B.’s findings of reflex changes and muscle weakness and Dr. C.H.’s findings of reflex changes are inconsistent with the all of the other evidence of record. VA examinations and treatment records consistently show normal deep tendon reflexes as well as normal muscle strength. Thus, for the foregoing reasons, the Board assigns no probative value to Dr. D.B. or Dr. C.H’s evaluations. B. Left lower extremity Based on consideration of all of the evidence of record, including the Veteran’s complaints, the Board finds that the Veteran’s left lower extremity radiculopathy is appropriately rated as 10 percent disabling prior to August 4, 2020, and 20 percent disabling thereafter. For the period prior to August 4, 2020, the Veteran’s left lower extremity radiculopathy manifested in no more than mild incomplete paralysis. As with the Veteran’s right lower extremity, the Veteran only experienced sensory deficits without any motor deficits. Muscle strength and deep tendon reflexes were consistently noted as normal. Additionally, the Veteran predominately described his symptoms as intermittent. Moreover, as described above, the Veteran experienced no more than mild functional impairment. Accordingly, his left lower extremity radiculopathy did not more nearly approximate moderate incomplete paralysis. Since August 4, 2020, the Veteran’s left lower extremity radiculopathy has not more nearly approximated moderately severe incomplete paralysis. Importantly, the Veteran’s symptoms have been wholly sensory, and thus, under the rating criteria, should not be rated as moderately severe. Thus, since August 4, 2020, the Veteran is in receipt of the highest available rating for sciatic nerve involvement that is wholly sensory without additional impairment. The Board again acknowledges Dr. D.B. and Dr. C.H.’s description of the Veteran’s left lower extremity radiculopathy as moderately severe. However, their characterization of the Veteran’s left lower extremity radiculopathy as moderately severe is inconsistent with the rating schedule, as the Veteran’s radiculopathy symptomatology has been wholly sensory. Additionally, as noted above, their findings of reflex changes and Dr. D.B.’s finding of muscle weakness is inconsistent with the other evidence of record. Thus, their evaluations are assigned no probative weight. In sum, the Board finds that the Veteran’s right lower extremity radiculopathy has manifested in mild incomplete paralysis since February 12, 2010, and thus a 10 percent rating is warranted since that time. The Board further finds that the Veteran’s left lower extremity radiculopathy has manifested in no more than mild incomplete paralysis prior to August 4, 2020, and in no more than moderate incomplete paralysis thereafter, warranting a rating of 10 percent and 20 percent respectively. As discussed, the Board has considered the application of staged ratings and finds that the ratings as set forth herein are appropriate. REASONS FOR REMAND Entitlement to a rating in excess of 40 percent for a low back disability is remanded. The Veteran seeks a higher rating for his low back disability. While the Board regrets further delay, it finds that additional development is necessary prior to adjudication. The evidence of record indicates that there may be outstanding, relevant private treatment records. A January 2015 VA treatment record notes that the Veteran was sent to Primer Back Center for physical therapy. However, no records from this facility are of record. Accordingly, a remand is required to allow VA to obtain authorization and request any outstanding records. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Primer Back Center. Make two requests for the authorized records from the aforementioned facility, unless it is clear after the first request that a second request would be futile. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.